Civil Liberties in the Trump Era

The surge in public engagement since the 2016 presidential election is a vital sign of democracy, ACLU national legal director David Cole says

October 27, 2017

The ultimate defenders of liberty are not the formal structures of government. They’re not even the courts. They are us. They are all of us.”

By Daniel P. Smith

Amid “dark times,” David Cole sees light. Plenty of it, in fact.

Cole, the national legal director for the American Civil Liberties Union, spoke to hundreds of students, faculty and community members Oct. 24 at the College’s 28th annual Richard L. Leopold Lecture.

Cole observed that the 2016 presidential election has sparked an unprecedented surge in civic engagement. The membership of the ACLU alone, he noted, has increased from 400,000 prior to the election to 1.6 million and counting.

“We might well, 10 years from now, come together and look back at this as a dark time … but also as a time that effected a transformation in American politics and a commitment to civil rights and liberties,” Cole said.

Cole’s talk — “We’ll See You in Court: The Defense of Liberty in the Era of Trump” — addressed the pressure the Trump administration has exerted on civil norms and liberties and the political activism that has kept that pressure in check.

“The ultimate defenders of liberty are not the formal structures of government,” he said. “They’re not even the courts. They are us. They are all of us.”

Checks and balances

Cole, who oversees the ACLU’s Supreme Court docket and a team of some 300 attorneys, explained the vital role that the federal courts play in providing checks and balances when one political party controls both the executive and legislative branches and has appointed a majority of the justices to the U.S. Supreme Court.

Indeed, the ACLU has leveraged the federal courts repeatedly since the election, suing the Trump administration time and again over issues such as immigration, the revocation of the Deferred Action for Childhood Arrivals program and the transgender military ban.

But the courts alone can’t uphold a healthy democracy, Cole said. Equally if not more important is the role of “civil society” — the press, nonprofit groups, academic institutions and engaged individuals who participate in the public sphere.

Cole pointed to the tens of thousands of protesters who filled the nation’s airports hours after the first travel ban was announced in January. While the ACLU filed a lawsuit challenging the order, Cole argued that the public outcry played a crucial role in bringing about the injuction.

“The courts have stood up to the president, but I submit [that is] because the people have stood up to the president in organized, strategic and thoughtful ways,” Cole said.

Those efforts, he added, need to be deepened and sustained.

Cole’s Leopold talk was the latest in a series of lectures by distinguished speakers including former U.S. Senator Russ Feingold, presidential nominee George McGovern, journalist Jane Mayer and historian Arthur Schlesinger Jr. The series was established in 1990 to honor the memory of the late Richard Leopold, a prominent diplomatic historian who served on the Northwestern faculty from 1948-1980.